Legal Blog Watch Posts Note on D.C. Circuit Gun Case that Created Split

Here is a post from yesterday's Legal Blog Watch from Law.com:

D.C. Gun Case May Shoot to the Supreme Court

Looks like the liberals who support gun rights as well as all others may have a good chance to make their case before the Supreme Court. As Lyle Denniston at SCOTUS Blog reports here, the D.C. Circuit today denied rehearing en banc by a vote of 6-4 in Parker v. District of Columbia, thus paving the way for resolution of the case by the Supreme Court. The District government had sought reconsideration following a Circuit panel's 2-1 ruling on March 9 that held the Second Amendment protects an individual right to have a handgun in one's own home. Denniston writes that a grant of cert is "quite likely" because of conflict between the circuit courts on the meaning of the Second Amendment. Denniston also notes that the D.C. Circuit is the first to rely on an individual right theory under the Second Amendment to strike down a gun ban. But there's another conflict: The District of Columbia Court of Appeals, has upheld the D.C. gun law under the collective right theory, which it reiterated last week in the case of Andrews v. United States (D.C. Court of Appeals docket 02-1043).

Eugene Volokh also gives the D.C. Circuit case a good chance at cert -- well over 50 percent. He writes:

That's a rare thing to say, given that the Court hears only about 1% of the cases that it's asked to hear. But here there is a split among federal courts of appeals on an important constitutional question — the D.C. Circuit and the Fifth Circuit take the individual rights view (see here and here for why the Fifth Circuit's decision can't be dismissed as dictum), while I think nine other circuits take the collective rights view. There is also a split between a federal court of appeals and D.C.'s highest court on the constitutionality of a specific law, which is itself usually seen as a strong signal in favor of cert. This is also the sort of question that the Justices would likely think ought to be decided by the Supreme Court; it's one thing to have different views in different circuits on some technical question, and another to have different views on whether an Amendment in the Bill of Rights secures an individual right or not.

As to whether the Supreme Court will accept the individual right view of the Second Amendment, Volokh says ,"Now that's a mystery." He notes that even on the Court, one Republican appointee seemed to reject the individual rights approach, as did most of the liberals (though, as Bob Ambrogi described in yesterday's post, plenty of liberal scholars and jurists are coming around to the individual rights view -- which Volokh notes in his post as well).
Even if the Court grants cert, it likely won't hear the case for quite some time, which should give both sides a chance to strenghthen their arguments and figure out which approach is likely to trigger a result in their favor.

[Posted on Legal Blog Watch by Carolyn Elefant on May 8, 2007]